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Thursday, August 2, 2012

DNA Recording: The Court Allows Maryland to Continue Collecting and Testing DNA Samples from People Who Are Arrested.

On
Monday, July 30, Chief Justice Roberts issued a stay to allow Maryland to
continue sampling and testing DNA from people who have been arrested, but not
yet convicted, of a crime.This
practice came under fire in 2009 when Alonzo Jay King, Jr., was arrested for
assault.During the booking
process, personnel at the Wicomico County Central Booking facility took a
sample of King’s DNA.Maryland
State Police Forensic Sciences Division processed the sample and entered it
into the Maryland DNA database.The database matched the sample to a rape that was committed in
2003.Following this match, King
was charged and convicted of that rape.

King
appealed his conviction, arguing that Maryland violated his Fourth Amendment
right to an expectation of privacy.He also argued that expectation of privacy outweighed any interest the
State might have in collecting his DNA.The Maryland Court of Appeals agreed and overturned King’s
conviction.The State appealed
this decision to the Supreme Court of the United States.

To
issue a stay, the State had to show three things.First, that there was a “reasonable probability” that the
Court would grant certiorari to hear the case.Second, that there was a “fair prospect” that the Court
would reverse the lower court’s decision.And, third, that there was a “likelihood that harm [would] result from
the denial of a stay.”

The
Chief Justice easily found a reasonable probability that the Court would grant
certiorari to hear the case.Given
that the Circuit Courts do not agree on the issue––also known as a circuit
split––there was a high probability that the Court would hear the case.Generally, the Court tries to resolve
circuit splits to ensure the Constitution is being applied consistently across
the country.

In
finding that there was a reasonable probability that the Court would grant
certiorari, the Chief Justice characterized this split as “implicat[ing] an
important feature of day-to-day law enforcement practices.”The Chief Justice went on to say that
the decision would have effects beyond just Maryland because the samples
Maryland collects go into the FBI database and can be matched to crimes across
the country.

The
second element the State had to prove was that there was a “fair prospect” that
the Court would reverse the lower court.The Chief Justice addressed this question in a single sentence: “[i]n
addition, given the considered analysis of courts on the other side of the
split, there is a fair prospect that this Court will reverse the decision
below.”Whether the Chief Justice
chose to consider this factor in such a cursory manner because he is concerned
whether he has the votes to actually overturn the lower court’s ruling is anyone’s
guess.Issuing the stay is at
least an indication that the Court is split on this issue, or they would not
have bothered with the stay before deciding whether to take the case.

The
third element was that the State would suffer irreparable harm if the stay were
not issued.Chief Justice Roberts credited
this program as a “valuable tool for investigating unsolved crimes” and helping
reduce the number of violent offenders in the public.The Chief Justice also noted that crimes that involve DNA
evidence in the first place “tend to be serious, and serious crimes cause
serious injuries.”Thus, Maryland
does suffer irreparable harm if the stay is not issued. While King argued that
the Court should consider Maryland’s eight-week delay as undermining its claim
of irreparable harm, the Chief Justice still gave more weight to the value this
policy has for law enforcement efforts.

Whether
this program will ultimately be found unconstitutional is unknown.Having granted the stay, it seems
almost a certainty that the Court will ultimately hear the case.The Chief Justice seems to indicate in
his opinion granting the stay that the program will ultimately be found
constitutional.However, it is
unclear whether he will be able to find the votes to support his position. Criminal
law is an interesting area, and the votes do not always follow traditional
party lines.In this last term alone, Chief Justice
Roberts, Justices Scalia, Kennedy, Thomas, and Sotomayor agreed that the
installation of a GPS tracking device on a car without a warrant was
unconstitutional.Justices Alito,
Ginsberg, Breyer, and Kagan would have found the same result, but disagreed
with the majority’s “trespass” approach.In addition, the Court split 4-1-4 in Williams v. Illinois.Justices Kagan, Scalia, Ginsburg, and Sotomayor composed the dissenting
opinion, while Chief Justice Roberts, Justices Kennedy, Alito, and Breyer composed
the majority.Justice Thomas
concurred partially with the dissent, and partially with the majority.Neither of these cases displayed the
usual break down of votes, with Chief Justice Roberts, Justices Alito, Thomas,
and Scalia on one side, Justices Ginsberg, Breyer, Kagan, and Sotomayor on the
other, with Justice Kennedy as the decisive vote.

The
concern with this sort of program is what safeguards are in place to keep
officers from abusing the policy.Under this program, could an officer arrest a suspect on an unrelated
crime as a pretext for collecting their DNA?Suppose this unrelated crime was a traffic violation.The Supreme Court has ruled that the
police may arrest people for traffic violations, even if the penalty is a
simple fine.The potential for
abuse in this type of program seems unavoidable.Hopefully the Court will address this problem when it
inevitably grants certiorari in this case.